On Petition To Transfer from the Indiana Court of Appeals, No. 48A02-0311-CR-995
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December 7, 2004

Boehm, Justice
Afredo D. Ruiz, was sentenced to the maximum of twenty years after pleading
guilty to child molestation, a Class B felony. The presumptive sentence for
a Class B felony is ten years. Ind. Code § 35-50-2-5 (2004).
Ruiz, twenty years old at the time of the crime, had sexual
intercourse with a thirteen-year-old girl who described their relationship as boyfriend and girlfriend.
The sole aggravating circumstance was Ruizs four prior alcohol related misdemeanors.
We hold that Ruizs sentence is inappropriate in light of the lack of
more severe aggravating circumstances and the non-violent nature of the offense. We
revise the sentence to the presumptive sentence of ten years.
On January 12, 2002, after a night of drinking, Ruiz, age twenty, and
Ely Leisure returned to Leisures residence where the victim, a thirteen-year-old girl, was
babysitting for Leisure. Leisure had previously warned Ruiz that the victim was
only thirteen and advised him to leave her alone. Nevertheless, Ruiz had
sexual intercourse with the victim that evening. The victim told her mother
and the authorities that at the time of the incident Ruiz and she
were involved in a boyfriend-girlfriend relationship. Ruiz later admitted to having intercourse
with the victim approximately six times.
After the State charged Ruiz with child molestation as a Class A felony,
he pleaded guilty to child molestation as a Class B felony. The
plea agreement provided that sentencing would be left to the discretion of the
trial court. At sentencing, the trial court found that the aggravating factors
outweighed the mitigating factors and imposed a twenty-year sentence, the maximum allowed under
the statute. The Court of Appeals affirmed. Ruiz v. State, 810
N.E.2d 784 (Ind. Ct. App. 2004). This Court granted transfer. Ruiz
v. State, No. 48S02-0407-CR-329, 2004 Ind. Lexis 650 (July 23, 2004).
Article VII, Section 4 of the Indiana Constitution provides that the Supreme Court
shall have, in all appeals of criminal cases, the power to . .
. review and revise the sentence imposed. Indiana Appellate Rule 7(B) implements
that authority by stating that [t]he Court may revise a sentence authorized by
statute if, after due consideration of the trial courts decision, the Court finds
that the sentence is inappropriate in light of the nature of the offense
and the character of the offender. On June 24, 2004, the United
States Supreme Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004), which
held that facts supporting an enhanced sentence must be admitted by the defendant
or found by a jury. We direct revision of the sentence to
the presumptive sentence solely on state law grounds, in exercise of our authority
to revise a sentence found to be inappropriate. Accordingly, no Blakely issue
is presented or addressed.
Ruiz urges this Court to revise his sentence on the ground that the
aggravating and mitigating factors were not properly balanced. Sentencing determinations, including whether
to adjust the presumptive sentence, are within the discretion of the trial court.
I.C. § 35-38-1-7.1; Wooley v. State, 716 N.E.2d 919, 929 (Ind. 1999).
If a trial court relies on aggravating or mitigating circumstances to modify
the presumptive sentence, it must: (1) identify all significant aggravating and mitigating
circumstances; (2) explain why each circumstance is aggravating or mitigating; and (3) articulate
the evaluation and balancing of the circumstances. Harris v. State, 659 N.E.2d
522, 527- 28 (Ind. 1995). The trial court in this case identified
both aggravating and mitigating circumstances, explained each classification, and articulated its balancing of
the aggravating and mitigating circumstances. The trial court then imposed the maximum
sentence allowed for a Class B felony. The trial court thus followed
correct procedures, but we conclude the trial courts balancing of the aggravating and
mitigating circumstances resulted in an inappropriate sentence.
The only aggravating circumstance considered by the trial court was Ruizs significant criminal
history which consisted of four alcohol-related misdemeanors. These included contributing to the
delinquency of a minor, two convictions for illegal possession consumption transport, and one
driving while intoxicated. The record does not include the facts of these
offenses, but apart from the driving offense it appears they consist of two
occasions of possession as a minor, and one of giving alcohol to a
minor. We conclude that these convictions for alcohol-related offenses are at best
marginally significant as aggravating circumstances in considering a sentence for a Class B
felony. Significance varies based on the gravity, nature and number of prior
offenses as they relate to the current offense. Wooley, 716 N.E.2d at
929.
In Wooley, this Court reviewed a maximum sentence of sixty years imposed for
a murder conviction. The sole aggravating circumstance was one prior conviction for
driving while intoxicated. Although this was not a trivial offense, we concluded
that it did not constitute a significant aggravating factor in sentencing for murder.
The two offenses were manifestly different in nature, and the driving offense
was relatively minor in comparison to the extension of the term it was
cited as supporting. Although the defendant in Wooley was drinking the day
of the murder, the alcohol, as a factor in the defendants prior conviction
did not render it a significant criminal history warranting imposing an additional sentence.
Id. Similarly, Ruizs criminal history of alcohol-related misdemeanors is not a
significant aggravator in relation to a Class B felony. Although alcohol was
involved in these offenses and also in the current crime, the latter is
manifestly different in nature and gravity from the misdemeanors.
The trial court found Ruizs guilty plea and expression of remorse to be
mitigating circumstances. Ruiz argues that the trial court erred in failing to
give substantial weight to his guilty plea. A guilty plea is a
significant mitigating factor in some circumstances. Widener v. State, 659 N.E.2d 529,
534 (Ind. 1995). Guilty pleas may be accorded significant mitigating weight because
they save judicial resources and spare the victim from a lengthy trial.
Sipple v. State, 788 N.E.2d 473, 483 (Ind. Ct. App. 2003), trans. denied.
However, as we have frequently observed, a plea is not necessarily a
significant mitigating factor. Senback v. State, 720 N.E.2d 1160, 1165 (Ind. 1999).
After pleading, Ruizs effort to change his testimony at the sentencing hearing
undermined his acceptance of responsibility for the crime. The terms of the
plea agreement are controlling, and the trial court was free to conclude as
it did; that the plea was not entitled to great weight.
Although appellate courts are reluctant to substitute their judgments for those of the
trial court in sentencing, sentences are reviewed to ensure they are not inappropriate
in light of the nature of the offense and the character of the
offender. App. R. 7(B); Serino v. State, 798 N.E.2d 852, 856 (Ind.
2003). The presumptive sentence is the starting point the General Assembly has
selected as an appropriate sentence for the crime committed. Lander v. State,
762 N.E.2d 1208, 1214-15 (Ind. 2002). Here the presumptive sentence was doubled
from ten to twenty years, based on unrelated and relatively insignificant prior convictions.
We conclude that neither the nature of the offense nor the character
of the offender supports an enhanced sentence.

Conclusion

We remand for new sentencing to a term of ten years. We
note that Ruiz is under detention order as an illegal alien and presumably
will be deported after serving his sentence.